Does This Open Source Project Make My Wallet Look Fat?

This Software is Free, as in Patent Violation
By Esther Schindler

You've puttered around with a non-trivial software problem, and you finally see a way to solve it. You decide to write the code yourself, maybe with the help of a few online friends, and the obvious answer is to make it an open source project. The first thing you do is... check with a patent lawyer?!

That doesn't seem to be an obvious answer, but unfortunately, it might make sense.

This is not about the well-reported dispute between SCO and IBM over ownership of Linux source code (though that is certainly relevant). Instead, the question here is the relationship between smaller projects that are at the mercy of someone claiming the software violates an existing patent. Case in point: Bob Jacobsen and the JMRI project.

JMRI is a suite of software that helps model railroad enthusiasts run their trains. The open source project, managed at SourceForge, was impressive enough to win an award at the JavaOne conference. That's at least mildly cool, assuming that you care about embedded systems, model railroads, or Java application development. DecoderPro makes it easier to program DCC decoders, and PanelPro lets you control your layout via your computer screen. About a hundred people are involved in the project to some degree, even if it's just to post messages on the mailing list to ask about "that pesky timeout issue with LocoBuffer-USB."

JMRI running a model railroad at JavaOne

But, ordinarily, this wouldn't be a topic to catch the interest of the average IT manager, or even the run-of-the-mill programmer who is considering contributing to an open source project on her own time.

Here's what does matter: Bob Jacobsen, the guy who's roughly in charge of JMRI, is being accused of violating an existing software patent. KAM Associates believes that the JMRI project is in breach of a KAM Associates patent filed in 2003. I haven't read all the legal paperwork (and I doubt I'd understand it if I did), but my understanding is that the patent covers the client/server interaction between a computer and a model train. What I do understand is that KAM Associates' lawyers did some math to figure out how much damage had been done, and provided Jacobsen with an invoice for over $200,000.

Because the matter is still in dispute ? at the moment, the lawyers are asking for "prior art" to demonstrate that the KAM patent wasn't the first to provide a computer connection to a model railroad ? few of the people involved can comment about the proceedings. On the other hand, the most interesting aspects are not about the legal particulars, but something larger: what this means to developers who might be interested in contributing to open source projects.

That is: if a developer decides to contribute to an open source project on her own time, how liable is she? and how liable is her employer? Open source is all about collaboration, after all: people working together to solve a problem. There's something seriously wrong if the first thing necessary for a gang of people ? whose motivation is something like, "My dad has a barn, let's put on a show!" ? is for them to say, "Let's hire a lawyer to make sure our bright idea doesn't violate anybody else's idea."

"That is exactly the problem," say Pamela Jones, founder and editor of Groklaw. "Patent law is for rich companies. It doesn't suit the development model of FOSS. If someone wishes to bring a patent infringement action against an individual, they certainly can. And anyone that infringes a patent is liable, company or individual."

According to Jones, "The relief in patent infringement actions is primarily money, either in damages or in license fees or both. An individual isn't a likely target for that kind of litigation, because what can you reasonably expect to get? Even if you got a judgment, you can't get blood from a stone." You could get an injunction to make the individual stop using the patent, but that would be it. So unless your purpose was essentially political ? such as to try to destroy Linux or Open Source ? "That kind of litigation isn't something you normally see," says Jones.